Citation Nr: 0108245
Decision Date: 03/21/01 Archive Date: 03/26/01
DOCKET NO. 99-16 458 ) DATE
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THE ISSUE
Eligibility for payment of attorney fees from past-due
benefits.
REPRESENTATION
S. A. K., Attorney at Law, represented by: Michael E.
Wildhaber, Attorney at Law
ATTORNEY FOR THE BOARD
Heather J. Harter, Counsel
INTRODUCTION
The veteran served on active duty from May 1960 to December
1967. The claimant is an attorney who represented the
veteran before the VA and the United States Court of Appeals
for Veterans Claims (Court) with respect to various claims
for veterans' benefits.
This claim was previously before the Board of Veterans'
Appeals (Board) in September 1999. The attorney perfected a
timely appeal of the September 1999 decision to the Court.
By order dated in October 2000, the Court vacated the Board's
decision, and remanded the claim to the Board in accordance
with a Joint Motion for Remand. The Court did not retain
jurisdiction over the matter.
On February 20, 2001, the Board remanded the case to the RO
for the RO to exercise original jurisdiction over the claim
for attorney fees.
VACATUR
In Scates v. Gober, 14 Vet. App. 62 (2000), the United States
Court of Appeals for Veterans Claims (Court) held that
[A]ll issues involving entitlement or
eligibility for attorney fees under
direct-payment contingency-fee
agreements, as contrasted with the issues
of reasonableness and excessiveness, must
first be addressed by the RO in
accordance with the normal adjudication
procedures and cannot be the subject of
sua sponte or other original (on motion)
[Board of Veterans' Appeals] review.
Scates, at 65.
The Court's October 2000 Order provided for the enforcement
of a joint motion filed by the parties to the case in
response to Scates. In the joint motion, both parties
requested that the Court remand the case to the Board with
directions to dismiss the matter of direct-payment fee
eligibility so that the RO could address the matter
originally.
The Board may vacate a decision when a veteran or intervenor
is denied due process of law. 38 U.S.C.A. § 7104(a) (West
Supp. 2000); 38 C.F.R. §§ 20.904 (2000). In this case,
because the Board lacked jurisdiction over the case, the case
was improperly remanded in February 2001. Because the Court
specifically ordered the Board to dismiss the case rather
than to remand it, the Board lacked jurisdiction to issue the
remand. Absent jurisdiction, the Board's remand cannot have
binding legal effect. 38 U.S.C.A. § 7104 (West Supp. 2000).
Accordingly, the remand promulgated on February 20, 2001,
must be vacated in its entirety.
DISMISSAL
Additionally, because this case is the same type of case as
Scates, and because Court has vacated the original decision,
the Board must dismiss the matter of direct-payment fee
eligibility as referred to the Board by the RO for want of
original jurisdiction to decide eligibility for direct
payment of a withheld contingency fee under 38 U.S.C.A. §
5904(d). The matter before the Board is therefore dismissed.
ORDER
The February 20, 2001, remand is vacated.
The matter before the Board is dismissed.
V. L. Jordan
Member, Board of Veterans' Appeals
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